The Queen v Watson - [2007] NZCA 432

IN THE COURT OF APPEAL OF NEW ZEALAND
CA247/07
[2007] NZCA 432
THE QUEEN
v
JAMES MALCOLM WATSON
Hearing:17 September 2007

Court:Ellen France, John Hansen and Wild JJ
Counsel:V C Nisbet for Appellant

M D Downs for Crown

Judgment:5 October 2007 at 3 pm

JUDGMENT OF THE COURT

An extension of time to appeal is granted, but the appeal, which is against sentence, is dismissed.
REASONS OF THE COURT
(Given by Wild J)
[1]       On the grounds that it is manifestly excessive, Mr Watson seeks leave to appeal against a sentence of eight years imprisonment imposed on him by Judge Davidson in the Wellington District Court on 19 July 2005 after he pleaded guilty to various charges under the Misuse of Drugs Act 1975 and the Arms Act 1983. Mr Nisbet submits the appropriate sentence was five to seven years.
[2]       The charges on which Mr Watson was sentenced were:

Offence Section MAXIMUM SENTENCE Sentence imposed

Cultivation of cannabis (x2) s 9(1) Misuse of Drugs Act 7 years
imprisonment 3 years
imprisonment

Possession of cannabis for sale (x3) s 6(1)(e) and (f) Misuse of Drugs Act 8 years
imprisonment 3 years
imprisonment

Sale of cannabis s 6(1)(e) Misuse of Drugs Act 8 years
imprisonment 2 years
imprisonment

Possession of equipment for cultivation of cannabis s 12A(2) Misuse of Drugs Act 5 years
imprisonment 2 years
imprisonment

Supply of equipment for cultivation of cannabis s 12A(1) Misuse of Drugs Act 7 years
imprisonment 2 years
imprisonment

Production of cannabis resin s 6(1)(b) Misuse of Drugs Act 14 years
imprisonment 2 years
imprisonment

Unlawful possession of firearm s 45(1) Arms Act 4 years
imprisonment / $5,000 fine 2 years
imprisonment

Unlawful possession of ammunition s 45(1) Arms Act 4 years imprisonment / $5,000 fine 2 years
imprisonment
The sentences on each of the cultivation charges were imposed cumulatively, as they represented two distinct cultivation operations. The sentences for possession for supply were imposed concurrently. The remaining sentences were imposed concurrently as amongst themselves, but cumulative on the earlier sentences. This resulted in the overall sentence of eight years imprisonment.
[3]       As the notice of appeal was filed some 21 months out of time, an extension of time to appeal is required. The Crown was justified in opposing an extension. In R v F (CA261/07) [2007] NZCA 417 this Court refused to extend time for appeals against successive sentences. The appeal against the more recent sentence was almost two years out of time. Here, the explanation for the delay in appealing is a belated change of heart. That is hardly a ground for granting leave. Although with considerable misgivings, we grant leave for two reasons. First, the Crown could not point to any prejudice. Second, we think it best that Mr Watson’s appeal is disposed of on its merits.
[4]       Mr Watson and his wife and co-accused Mrs Eva Watson, through their company Discount Hydroponics Wellington Ltd (DHL), ran a large scale vertically integrated cannabis business. From premises in Lyall Bay they sold…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Watson

Details

AGLC: The Queen v Watson [2007] NZCA 432
Case: [2007] NZCA 432
Decision Date: 5 October 2007

CaseChat Overview and Summary

The appeal is against a sentence of eight years imprisonment imposed by Judge Davidson in the Wellington District Court on James Malcolm Watson, who pleaded guilty to various charges under the Misuse of Drugs Act 1975 and the Arms Act 1983. The appeal was filed 21 months out of time, but leave was granted for the appellant to appeal against the sentence as manifestly excessive. The Crown opposed the extension of time to appeal on the grounds that it was unjustified and that the appeal against the more recent sentence was almost two years out of time. However, leave was granted on the basis that the Crown could not point to any prejudice and that it was in the best interests of justice to dispose of the appeal on its merits.

The legal issue before the court was whether the sentence imposed on the appellant was manifestly excessive. The appellant's counsel argued that the appropriate sentence was five to seven years and that the sentence was excessive given the appellant's age, insight, attempts to rehabilitate himself, and lifelong addiction to cannabis. The Crown submitted that the sentence was in line with comparable sentences imposed for similar offences.

The court found that the sentence was not manifestly excessive and was within the available range for the appellant's offending. The court noted that the appellant had been involved in large-scale cannabis cultivation and supply for many years and had been sentenced to imprisonment on numerous occasions for similar offending. The court also noted that the appellant had a severe addiction to cannabis, which had become an obsession. However, the court found that these factors did not outweigh the need to protect the community from the appellant's repeated offending.

Accordingly, the appeal was dismissed. The court found that the sentence imposed on the appellant was a stern but appropriate response to his prolonged period of large-scale offending. The court noted that the appellant remained highly motivated and physically fit for his age, and that his age was outweighed by the need to protect the community from his repeated offending. The court also noted that the appellant's attempts to rehabilitate himself had been accepted as a mitigating factor by the sentencing judge.

Orders